Federal Court Revives Wikimedia’s Challenge to N.S.A. Surveillance

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The director of the National Security Agency, Adm. Michael S. Rogers, in Washington on Tuesday. A court ruled that Wikimedia has grounds to sue the N.S.A. over Fourth Amendment privacy rights.CreditCreditPablo Martinez Monsivais/Associated Press

A federal appeals court on Tuesday revived a high-profile challenge to the National Security Agency’s warrantless surveillance of internet communications as they enter or exit the United States.

The ruling, by the Court of Appeals for the Fourth Circuit, is significant because it increases the chances that the Supreme Court may someday scrutinize whether the N.S.A.’s so-called upstream system for internet surveillance complies with Fourth Amendment privacy rights. It is currently an open question about how to apply old legal concepts to 21st-century communications technology.

Handed down in Richmond, Va., the ruling reversed a Federal District Court judge’s decision to throw out the case. The district judge had ruled that the plaintiffs — including the Wikimedia Foundation, which publishes the Wikipedia online encyclopedia — lacked standing to sue because they could not prove that their messages had been intercepted, and therefore did not reach the legal merits of the lawsuit.

But the three-judge appeals panel ruled unanimously that Wikimedia engages in so many internet communications with people around the world that it was essentially certain some of those messages had been caught up in the N.S.A.’s system.

“To put it simply, Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the N.S.A. seizes all of the communications along at least one of those roads,” Judge Albert Diaz wrote. “Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment.”

Because of how the internet works, surveillance of communications crossing network switches is different from traditional circuit-based phone wiretapping. While the government can target a specific phone call without touching anyone else’s communications, it cannot simply intercept a surveillance target’s email as it crosses the internet.

Instead, as information that came to light after the 2013 leaks of Edward J. Snowden made clearer, to find such emails it is necessary first to systematically copy data packets crossing a network switch and sift them in search of components from any messages involving a target. The N.S.A. stores a copy of the messages it was hunting for, while the packets from unrelated messages are discarded.

Privacy advocates contend that the initial copying and searching of all those data packets — even if most are swiftly discarded — violates Fourth Amendment protections against government search and seizure. Advocates have sought to have a judge address that question. But it has proved difficult to persuade judges that any particular plaintiff has legal standing to bring such a case.

“This is an important victory for the rule of law,” Patrick Toomey of the American Civil Liberties Union, which is representing Wikimedia, said of Tuesday’s ruling. “The N.S.A. has secretly spied on Americans’ internet communications for years, but now this surveillance will finally face badly needed scrutiny in our public courts.”

Mark Abueg, a Justice Department spokesman, declined to comment on whether the department would appeal the ruling.

The federal court ruling to dismiss claims by plaintiffs other than Wikimedia was upheld by two judges on the appeals panel. Although those plaintiffs communicated less voluminously than Wikimedia, they had argued that their communications were surely captured, too, because the system acts like a dragnet.

Their claim was based in part on a 2013 article in The New York Times describing the system, but two of the judges said that was insufficient to give them standing. A third judge, Andre M. Davis, dissented, saying they should have had their claim revived, too.

The revival of the Wikimedia case comes at an important time. The government carries out upstream surveillance under the FISA Amendments Act, which is set to expire at the end of 2017 unless Congress extends it.

The ruling is part of a growing constellation since the 2013 leaks by Mr. Snowden in which judges have taken a more skeptical stance when the government has argued that lawsuits over surveillance should be thrown out.

In another case, led by the Electronic Frontier Foundation, a judge in California last week ordered the government to provide limited “discovery” about whether the plaintiffs’ communications had been subjected to upstream surveillance. That case is focused on whether the system violates statutory limits on surveillance, like the Wiretap Act, rather than the Fourth Amendment.

And in yet another case, last October, the Court of Appeals for the Third Circuit ruled that a plaintiff had legal standing to challenge another aspect of surveillance under the FISA Amendments Act. That case involved the so-called Prism or downstream system, which collects emails of foreign targets who use American webmail providers like Gmail.

A version of this article appears in print on , on Page A14 of the New York edition with the headline: Federal Court Revives High-Profile Challenge to N.S.A.’s Internet Surveillance. Order Reprints | Today’s Paper | Subscribe